Police used excessive force against protesters. Torture, including rape, and other ill-treatment of people in police custody continued to be reported. Xenophobia and violence against refugees, asylum-seekers and migrants resulted in deaths, injuries and displacement. Women and girls, particularly those in marginalized communities, continued to face gender inequality and discrimination. Lesbian, gay, bisexual, transgender and intersex (LGBTI) people were subjected to discrimination and hate crimes, including killings. Human rights defenders were attacked.

Background

Political violence erupted in KwaZulu-Natal Province in the run-up to local elections held on 3 August. Between January and July, 25 violent incidents were reported, including 14 murders of local councillors, election candidates or members of political parties. The Police Minister set up a task force to investigate and prosecute incidents of politically motivated crime in the province.

From July, widespread and often violent student protests demanded free tertiary education. The protests followed the government’s announcement of fee increases of up to 8% for the 2017 academic year.

Courts affirmed the independence of state oversight institutions. On 31 March, the Constitutional Court backed the findings of the Office of the Public Protector’s inquiry into non-security upgrades at the President’s personal residence, requiring him to pay back the public funds used. On 6 September, the Constitutional Court ruled that the Police Minister’s decision to suspend Robert McBride, Executive Director of the Independent Police Investigative Directorate (IPID), under the IPID Act was unconstitutional. In November, charges of fraud against Robert McBride were withdrawn.

Excessive use of force

In response to the student protests, police sometimes used excessive force, including firing rubber bullets at close range at students and supporters when the use of force was neither necessary nor proportionate.

On 11 December, President Zuma announced steps taken by departments to implement the recommendations of the Farlam Commission of Inquiry into the police killings of striking miners in Marikana in 2012. These included revising the protocols governing the use of force, the launch on 15 April of a ministerial task force to ensure the psychological and physical fitness of police officers, and the setting up on 29 April of a panel of experts to revise public order policing processes. The Board of Inquiry into the fitness of national Police Commissioner Riah Phiyega to hold office concluded and was due to submit its final report to the President.

Police

The IPID reported 366 deaths as a result of police action and 216 deaths in police custody in 2015/2016, both figures lower than for the previous year. It also reported 145 cases of torture, including 51 cases of rape, by police officers on duty, and 3,509 cases of assault by police. Legal proceedings relating to unlawful killings by police remained slow.

In Durban High Court, the trial of 27 police officers, most of them members of the now disbanded Cato Manor Organized Crime Unit, on charges including 28 counts of murder, was further delayed until 31 January 2017.

In October, the Public Protector issued a report into violence at Durban’s Glebelands hostel complex between March 2014 and November 2016 during which over 60 people died in targeted killings. The report found that the conflict was a result of the municipality’s failure to assume responsibility for rental accommodation at the hostel. The report highlighted the detention and torture by police of at least three Glebelands residents in 2014, with no action taken against those suspected of criminal responsibility. The IPID investigation into the March 2014 death in custody of Zinakile Fica, a Glebelands resident, was not completed.

The Public Protector’s report also found that the police failed in its duty to prevent and investigate crime and to protect hostel residents, highlighting the low ratio of arrests and lack of successful prosecution of murder suspects. The Public Protector promised to monitor investigations of allegations of police torture and killings of Glebelands residents.

In April, Glebelands residents submitted an urgent appeal to the UN High Commissioner for Human Rights, calling for the UN Human Rights Council to intervene regarding the targeted killings. On 7 November, a Glebelands peace committee leader was shot dead after leaving Umlazi Magistrate’s Court. No arrests have been made.

International justice

In October, the government submitted an instrument of withdrawal from the Rome Statute of the International Criminal Court (ICC) without consulting Parliament.¹ The withdrawal takes effect after one year. The move followed non-co-operation procedures by the ICC against South Africa after the authorities failed to execute warrants of arrest for genocide, crimes against humanity and war crimes against Sudanese President Omar al-Bashir when he visited South Africa in June 2015 to attend the African Union (AU) summit. The move also followed the dismissal by South Africa’s Supreme Court of Appeal on 15 March of an appeal against the 2015 North Gauteng High Court judgment that the failure to arrest President al-Bashir violated South Africa’s Constitution. State authorities had allowed President al-Bashir to leave South Africa in contravention of an interim order by North Gauteng High Court that he must remain.

Corporate accountability

New research concluded that the failure of mining company Lonmin to address housing conditions at Marikana contributed to the events of August 2012, when police shot dead 34 striking mineworkers.² Under its legally binding 2006 Social and Labour Plan, Lonmin had promised to construct 5,500 houses for mineworkers by 2011. It had built only three by 2012. In August 2016, Lonmin said that approximately 13,500 of its 20,000 permanent employees still needed formal accommodation. Many mineworkers continued to live in informal settlements such as Nkaneng within Lonmin’s mine lease area. The shacks in Nkaneng do not meet the most basic international requirements for adequate housing. As a result, Lonmin’s operations were inconsistent with the right to an adequate standard of living, including adequate housing.

Refugees’ and migrants’ rights

Xenophobia and violence against refugees, asylum-seekers and migrants continued, resulting in deaths, injuries and displacement. Many incidents involved the targeted looting of foreign-owned small businesses in townships.

In June, shops in Pretoria townships were looted and at least 12 refugees and migrants were seriously injured and hundreds displaced. Earlier in the year, residents of Dunoon in the Western Cape looted foreign-owned businesses.

In April, findings were released of an inquiry into the 2015 violence against refugees, migrants and asylum-seekers in KwaZulu-Natal Province. The inquiry found the tensions were due to competition for scarce employment opportunities in the context of poverty and socioeconomic inequality. Its recommendations included educating civil servants on the rights and documentation of foreign nationals; strengthening the capacities of institutions managing migrants, refugees and asylum-seekers; ensuring leaders make responsible public statements; and education campaigns in schools to promote cohesion.

The previous closure of three of six refugee reception offices continued to put severe pressure on refugees who must consequently travel long distances to renew asylum permits.

Draft legislation on international immigration put forward in June includes a security-based approach to asylum-seekers, restricting their rights. It proposes asylum processing and administrative detention centres at South Africa’s borders. These would house asylum-seekers while their applications are processed and limit their rights to work and movement while awaiting a decision on their application.

Women’s rights

Gender inequality and discrimination continued to exacerbate the detrimental impact of racial, social and economic inequalities, especially for marginalized groups of women and girls.

Nearly a third of pregnant women were living with HIV, but improved access to free anti-retroviral treatment for pregnant women continued to reduce maternal mortality. Department of Health figures showed that the maternal mortality ratio continued to fall, from 197 for every 100,000 live births in 2011 to 155 in 2016. Problems persisted in rural communities relating to the availability and cost of transport for pregnant women and girls needing to access health services. The lives of pregnant women and girls continued to be put at unnecessary risk due to barriers to abortion services.

In June, the government launched a campaign, She Conquers, to address the disproportionately high rates of HIV infection among girls and young women and to reduce high levels of adolescent pregnancy. Although focused on improving access to health, education and employment opportunities for girls, campaign messaging was criticized for perpetuating negative stereotypes of girls’ sexuality.

Also in June, the Commission for Gender Equality found the requirement that girls undergo virginity testing (ukuhlolwa) to access tertiary education bursaries, as imposed by a municipality in KwaZulu-Natal Province, violated constitutional rights to equality, dignity and privacy and would perpetuate patriarchy and inequality in South Africa. The ukuhlolwa requirement was removed.

A report by the UN Special Rapporteur on violence against women, its causes and consequences issued in June called on South Africa to implement a co-ordinated approach to end the pandemic of gender-based violence and discrimination, and recommended the decriminalization of sex work.

In March, the South African National AIDS Council (SANAC) launched a plan to address high rates of HIV among sex workers, including access to pre-exposure prophylaxis and anti-retroviral medicine. SANAC and sex worker activists warned that South Africa’s laws relating to “prostitution” risked undermining the plan.

Rights of lesbian, gay, bisexual, transgender and intersex people

Hate crimes, hate speech and discrimination against LGBTI people, including killings and assaults, continued. Such attacks were believed to be grossly under-reported to police.

In March, Lucia Naido was stabbed to death in Katlehong, Ekurhuleni. Katlehong police opened a murder investigation, which was ongoing.

In April, a young, openly gay man, Tshifhiwa Ramurunzi, was attacked and seriously injured in Thohoyandou, Limpopo Province. His attacker was charged with attempted murder.

On 6 August, the body of Lesley Makousaan, an openly gay 17-year-old student, was found in Potchefstroom, North West Province; he had been strangled. A suspect was arrested shortly afterwards and was awaiting trial.

The body of Noluvo Swelindawo, an openly lesbian woman, was found in Khayelitsha, Western Cape Province, on 4 December, the day after she was kidnapped. A suspect was arrested on charges including housebreaking, kidnapping and murder, and appeared in court on 7 December. On 21 December, the suspect withdrew his bail application.

Human rights defenders

Human rights defenders were attacked for carrying out their work, and justice for such crimes was slow.

In March, land rights activist Sikhosiphi “Bazooka” Rhadebe was shot dead at his home in Lurholweni, Eastern Cape Province, by two men claiming to be police officers.³ He was Chairperson of the community-led Amadiba Crisis Committee and opposed the opencast mining of titanium and other heavy minerals on communal land in Xolobeni by a local subsidiary of Australia-based Mineral Commodities Limited.

The trial of a police officer charged with the October 2013 shooting and killing of 17-year-old housing rights activist Nqobile Nzuza during a protest in Cato Crest informal settlement in Durban was scheduled to begin in February 2017.

On 20 May, Durban High Court found two councillors representing the ruling African National Congress (ANC) and a co-accused hit man guilty of murdering housing rights activist Thulisile Ndlovu in September 2014. The three were sentenced to life imprisonment.

In a landmark judgment on 17 November, Bloemfontein High Court upheld the appeal by 94 community health workers and Treatment Action Campaign activists who had successfully challenged the constitutionality of the use of apartheid-era legislation, the 1993 Regulation of Gatherings Act. The Act criminalizes the gathering of more than 15 people in a public space without notifying the police in advance. The judgment affirmed that participating in a gathering without prior notice is not an offence.

Freedom of expression

In June, three senior journalists of the South African Broadcasting Corporation (SABC) were summarily suspended, allegedly for disagreeing with the decision not to cover a peaceful protest against censorship and abuse of power by the SABC, organized by the advocacy organization Right2Know. When five other SABC journalists objected to the suspensions they were accused of misconduct. All eight SABC employees were then fired. The group filed a case with the Constitutional Court in July, arguing that their right to freedom of expression had been violated; the case was pending. Four of the journalists won a case at the Labour Court in July that SABC had violated labour procedures. The eight subsequently returned to work but continued to face threats. On 12 December, four of the eight testified on behalf of the group at Parliament’s inquiry into the fitness of the SABC board. Right2Know testified on 14 December.

Discrimination

People with albinism

Attacks against and the abduction of people with albinism were reported.

Four-year-old Maneliswa Ntombel was abducted by two men near his home on 21 June in KwaZulu-Natal Province. He remained missing at the end of the year.

In February, Mtubatuba Regional Court sentenced a 17-year-old youth to 18 years’ imprisonment for the murder of Thandazile Mpunzi, who was killed in August 2015 in KwaZulu-Natal Province. Her remains were discovered in a shallow grave. Parts of her body had been sold to traditional healers. Two other men who pleaded guilty to the murder had each been sentenced in September 2015 to 20 years’ imprisonment.

Hate crime legislation

In October, the draft Hate Crimes Bill was introduced. It aims to address racism, racial discrimination, xenophobia and discrimination based on gender, sex, sexual orientation and other issues, by providing an offence of hate crime. It includes controversial provisions that criminalize hate speech in ways that could be used to impermissibly restrict the right to freedom of expression.

Right to education

Children with disabilities

Children with disabilities continued to face multiple challenges of discrimination, exclusion and marginalization which, among other things, denied them equal access to education despite legal and policy frameworks guaranteeing inclusive education. On 27 October, the UN Committee on the Rights of the Child recommended a review of Education White Paper No.6 to develop a framework for inclusive education that would see expansion of full-service schools and the inclusion of children with disabilities in mainstream education.

1. South Africa: Decision to leave International Criminal Court a “deep betrayal of millions of victims worldwide” (News story, 21 October)
2. South Africa: Smoke and mirrors – Lonmin’s failure to address housing conditions at Marikana (AFR 53/4552/2016)
3. South Africa: Human rights defenders under threat (AFR 53/4058/2016)